Chapter 5.85


5.85.010    Findings – Purpose.

5.85.020    Definitions.

5.85.030    Establishment and responsibility of newsrack committee.

5.85.040    Requirement of newsrack permit.

5.85.050    Design.

5.85.060    Placement.

5.85.070    Standards.

5.85.080    Maintenance.

5.85.090    Abatement of violation.

5.85.100    Insurance.

5.85.110    Business license.

5.85.120    Indemnification.

5.85.130    Schedule for compliance.

5.85.140    Appeal – Notice.

5.85.150    Report concerning the appeal.

5.85.160    Action of the appeal.

5.85.170    Violation and penalties.

5.85.180    Severability.

Prior history: 1966 Code §§ 5-17.01 – 5-17.11; Ord. 478.

5.85.010 Findings – Purpose.

The city council hereby finds and declares the purposes of this chapter as follows:

A.    There is a substantial governmental interest in promoting the health, safety, welfare and convenience of the public by ensuring that persons may use the public streets, sidewalks, rights-of-way, and other public property without unreasonable interference.

B.    Newsracks placed and maintained on the streets, sidewalks, rights-of-way, or other public property absent some reasonable regulation, may (1) present hazards to persons or property; (2) unreasonably interfere with the use of such public property; and (3) adversely affect the appearance of public property.

C.    The streets, sidewalks, public rights-of-way, and other public property are historically associated with the distribution or sale of newspapers and other publications and the use of newsracks.

D.    It is necessary and desirable for the city to adopt regulations (1) to ensure the safety of the public and its employees, (2) to protect public streets, sidewalks, rights-of-way and other public property, (3) to prevent the unreasonable interference with the use of public property by vehicular, bicycle, wheelchair and pedestrian traffic, (4) to eliminate obstructions of sight distance or views of traffic signs and street crossings, (5) to enhance the aesthetic nature of such public property, while at the same time permitting the use of such public property for the distribution or sale of written material through newsracks to the extent such activity is constitutionally protected and can be carried out without undue interference with the city’s substantial governmental interest of promoting the health, safety, welfare and convenience of the public, and (6) to protect the welfare of minors and prevent minors from having access to materials that are sexually explicit, pornographic and obscene as to them, while at the same time allowing access to such materials to adults.

E.    To that end, the council considers it in the best interest of the public to establish rules and regulations governing the use of public property for the distribution or sale of written materials through newsracks.

F.    The regulation of the distribution or sale of newspapers and other publications through newsracks as set forth in this chapter provides the least intrusive and burdensome means for ensuring the purposes stated in this section are carried out while still providing ample opportunities for the distribution of information to the citizens of the city.

G.    The council determines that more specific location and design standards for newsracks in the redevelopment project areas are required due to the greater frequency of pedestrian and vehicular traffic and newsrack locations in such areas. In addition, the council also finds and declares that the adoption of standard design requirements for newsracks located in the redevelopment project areas complement the revitalization objectives of the redevelopment plan and the downtown action agenda and therefore also promote the public welfare and safety of such area.

H.    The adoption of regulations in this chapter will provide public safety, promote revitalization efforts, protect the aesthetic nature of public property, prevent unreasonable interference with the use of public property by pedestrians and traffic, protect the welfare of minors and establish reasonable rules for the placement and maintenance of newsracks in a manner that provides reasonable accommodation to these competing interests and in a manner consistent with federal and state constitutional requirements. (Ord. 682, § 1; 1976 Code § 5-17.01).

5.85.020 Definitions.

For purposes of the chapter, the following definitions apply.

A.    “Abandoned newsrack” means any newsrack which does not contain copies of the publication designated to be distributed or sold therefrom for a period of ten consecutive business days, except that a newsrack remaining empty due to labor strike or other temporary and extraordinary interruption of distribution of the publication that is beyond the control and not the fault of the distributor shall not be deemed abandoned provided that written notice of such event be given to the city and the city authorizes such newsrack to remain empty.

B.    “Central business district” means for the purposes of this chapter the area of the city of Millbrae bounded on the north by Park Blvd., on the east by the Peninsula Corridor Joint Powers Board railroad, on the south by Murchison Drive and on the west by Magnolia Ave./South Magnolia Ave.

C.    “City” means the city of Millbrae.

D.    “Director” means the director of public works for the city of Millbrae or his/her designee.

E.    “Distributor” means any individual or firm that uses any newsrack for the distribution of any publication.

F.    “Harmful matter” means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political or scientific value for minors.

G.    “Modular newsrack” means a single pedestal mounted newsrack attached to the sidewalk, street or public right-of-way containing separate compartments for two or more different publications, where each has separate coin slots or merchandise receptacles or places where the publication is dispensed.

H.    “Newsrack” means any self-service or coin-operated box, container, storage unit, or other dispenser installed, used, or maintained for the display and sale or distribution with or without charge for newspapers, periodicals or other publications.

I.    “Newsrack permit” means a permit issued by the director for the installation, maintenance and operation of fixed modular newsracks and/or free-standing newsracks.

J.    “Public right-of-way” means all public property and those areas dedicated to public use for public street purposes including but not limited to roadways, parkways, alleys and sidewalks.

K.    “Redevelopment project areas” means the areas included within the boundaries of the Millbrae redevelopment project approved by the Millbrae city council and planned for development, replanning, redesign, clearance, reconstruction or rehabilitation, or any combination of these, and the provision of such residential, commercial, industrial, public or other structures or spaces as may be appropriate or necessary in the interest of the general welfare, including recreational and other facilities incidental or appurtenant to them.

L.    “Roadway” means that portion of a public right-of-way improved, designed and ordinarily used for vehicular traffic including drainage gutters and curbs.

M.    “Sidewalk” means that portion of a public right-of-way provided for the exclusive use of pedestrians, including planting areas or parking strips, between the public roadway and adjacent property lines.

N.    “Temporary newsrack” means any newsrack maintained in the public right-of-way for a trial period of up to forty-five days. (Ord. 682, § 1; 1976 Code § 5-17.02).

5.85.030 Establishment and responsibility of newsrack committee.

A.    In order to facilitate the implementation of this chapter, a newsrack committee shall be established, consisting of three distributors, or their representatives, whose publications are circulated within the city. One member of the committee will be the representative of a daily publication, one will be the representative of a weekly or twice weekly publication and one will be the representative of a monthly or other publication.

B.    The committee will be formed within thirty days of the effective date of this chapter, and members’ terms of office shall be three years or until their successors are appointed. The members shall be appointed by the city council, and shall be advisory to the director on matters involving newsracks within the city. The terms of office of the respective members shall be staggered and overlapped in such a manner that the term of one member expires each year.

C.    The committee shall assist the director in ensuring compliance with this chapter, including, but not limited to: approving the issuance of the necessary permits, and monitoring existing newsracks within the city to ensure compliance with design, placement, and maintenance standards. (Ord. 682, § 1; 1976 Code § 5-17.03).

5.85.040 Requirement of newsrack permit.

A.    The provisions of this chapter shall be the exclusive requirements for newsrack encroachments onto public rights-of-way in the city.

B.    Each distributor may place, install, use or maintain any newsrack on public rights-of-way or public property provided they have obtained a permit, which shall be renewed every two years, and they comply with its terms and conditions and other provisions of this chapter. If a distributor does not obtain a permit, newsracks shall be removed upon discovery.

C.    There shall be no initial or renewal fee, bond or other charge for a newsrack permit or application. There shall be insurance, business license and indemnification requirements as set forth in this chapter. The city shall recover all actual costs for necessary activities related to noncompliance by a distributor or a distributor’s agent.

D.    The newsrack permit application and renewal form may be obtained from, and shall be submitted to, the director. The permit application and renewal shall include, but not be limited to, the following information: (1) the name, address, and telephone number of those person(s) and/or organization responsible for installation, use and maintenance of the newsrack(s), (2) the location(s) and duration of the proposed placement of the newsrack(s), and (3) the name(s) of the publication(s) and frequency of publication(s) for the material(s) to be sold or distributed from the newsrack(s). The director in his/her discretion may request additional information as he/she may determine is required for the efficient and adequate administration of the newsrack program. The director shall issue an initial newsrack permit within ten working days if the permit application satisfies the requirements set forth in this chapter. The director will provide renewal forms and shall issue renewals within reasonable time and valid permits shall remain in effect until such time as a permit renewal is issued or a permit is canceled or disapproved. An incomplete application shall be on file for sixty days.

E.    If a newsrack permit or renewal is disapproved, in whole or in part, the director shall notify the applicant promptly, explaining the reasons for denial of the permit. The applicant shall have ten calendar days within which to appeal the decision to the city council in accordance with the appeals provisions of this chapter.

F.    A person securing a newsrack permit may install and maintain additional newsracks by a director approved amendment to the permit originally granted to that person. The rules and procedures of this chapter shall also apply to the review and approval of any such amendment.

G.    All persons who obtain a newsrack permit shall also obtain and display at all times an identification/permit marker provided by the city on the front of each newsrack in a clearly visible manner and location. Newsracks not included in an approved permit and/or without such identification/permit marker or identifying information set forth in this section will be deemed to be in violation of this chapter. An identification/permit marker shall be displayed on each newsrack compartment in a modular newsrack.

H.    The director shall impose conditions upon the permit necessary to avoid injury to persons and damage to property, to maintain and enhance the aesthetic nature of city property, to assure the safe and orderly use of city property and to protect the welfare of minors. Such conditions may include, but are not limited to (1) limitations on the number of newsracks to be placed, installed, used or maintained at any given location, (2) the duration that the newsrack may remain at a location, and (3) specifying where the newsrack may be placed. (Ord. 682, § 1; 1976 Code § 5-17.04).

5.85.050 Design.

A.    Within the central business district of the city, each newsrack shall be a model TK 49-16 with Concourse 97 top as manufactured by “Sho-Rack” or newsracks of equivalent quality and characteristics as approved by the director. Where there are more than three non-modular newsracks used by all distributors in any one location, modular style racks shall be used. The color shall be selected by the director.

B.    The compartments of modular newsracks shall be placed in such a manner as to use no more than two horizontal rows of six compartments per row.

C.    All newsracks installed in the public rights-of-way must meet the approved newsrack dimensions of not more than four feet six inches high, including pedestal, measured from the ground to the top surface of the newsrack, not more than two feet deep and not more than thirty inches wide for an individual newsrack or compartment.

D.    The design of a newsrack shall not create a danger to the persons using the newsrack in a reasonably foreseeable manner.

E.    The highest operable part of the coin slot, if provided for in the newsrack, and all controls, dispensers and other operable components of newsracks shall not be higher than forty-eight inches above the level of the adjacent pavement or sidewalk, not lower than fifteen inches above the level of the adjacent pavement or sidewalk.

F.    The distributor of each newsrack shall comply with the accessibility standards of the Americans with Disabilities Act of 1990, Public Law 101-336, and its amendments. (Ord. 682, § 1; 1976 Code § 5-17.05).

5.85.060 Placement.

A.    No person shall place, install, stock, use or maintain any newsrack which projects onto, into or over any part of the roadway of any public right-of-way, or which rests, wholly or in part, upon, along or over any portion of a roadway.

B.    No person shall place, install, use or maintain any newsrack which in whole or in part rests upon, in or over any sidewalk or parkway, when such installation, use or maintenance (1) endangers the safety of persons or property, (2) adversely affects the aesthetic nature of the public property, (3) unreasonably interferes with or impedes the flow of pedestrian or vehicular traffic, including access for persons with disabilities, the ingress into or egress from any residence, place of business, or the use of poles, posts, traffic signs or signals, hydrants, postal service collection boxes or other objects permitted at or near said locations, or (4) when such site or location is used for public utility purposes, public transportation purposes or other government use.

C.    Newsracks shall comply with the following:

1.    Newsracks shall only be placed near a curb or adjacent to the wall of a building. The back of newsracks placed near the curb shall be placed no less than eighteen inches nor more than twenty-four inches from the edge of the curb. The back of newsracks placed adjacent to the wall of a building shall be placed parallel to such wall and not more than six inches from the wall. No newsrack shall be placed or maintained on a sidewalk of a parkway opposite another newsrack or kiosk which distributes newspapers, periodicals or other publications.

2.    All modular newsracks shall be pedestal mounted. All newsracks, except temporary newsracks, shall be permanently affixed to the ground, except as permitted under this chapter. The method for affixing to concrete, asphalt concrete or other finished surface shall be such as to provide for a neat and clean fastening that does not damage the surface surrounding the fastener. Furthermore, fasteners must be of such construction that they can be easily removed without damaging the surface and the surface can be easily repaired with the repair confined to the immediate areas of the fastener. The surface shall be restored to the equivalent condition as it was prior to the newsrack installation. Distributor(s) shall be responsible for providing pedestals and mounting boxes and, where modular newsracks are required, shall coordinate such activities among themselves. Newsracks shall not be chained or otherwise attached to a bus shelter, bench, street light, utility pole, or sign pole, to any other single or modular newsrack, or to any tree, shrub, or other plant, nor situated upon any landscaped area.

3.    Newsracks shall be placed next to each other at a location. In any location where there are more than three non-modular freestanding newsracks used by all distributors at such location, modular style racks shall be required. Except next to buildings, no group of newsracks shall extend for a distance of more than sixteen feet, and shall be no closer than four feet to another group of newsracks. Street furniture such as trash cans, poles and trees (including wells) and utilities such as a fire hydrant shall count as one of the groups of sixteen feet and not as part of the break between groups of newsracks. The number of newsracks that may be placed at any location shall be determined by available space, the application of criteria in this chapter and with sensitivity to the appearance and aesthetic nature of the public forum. The director may designate the limits of areas available for newsracks to ensure that placement adheres to criteria and standards in this chapter.

The number of locations within a given area of the city where newsracks will be permitted shall be designated in accordance with the criteria established in this chapter. Where there are locations already in use by distributors, they shall be used if space is available and new locations not started. No new locations may be established when existing in-use locations provide reasonable access to persons in the area. Any other locations shall be approved by the director.

If sufficient space does not exist to accommodate all newsracks sought to be placed at one location without violating the standards set forth in this chapter, the director shall give priority to new permit applicants as follows:

a.    First priority, on a first come first served basis, shall be given to daily publications (inclusive of their Saturday, Sunday or weekend editions whether or not published jointly with another paper) published at least five times per week;

b.    Second priority, on a first come first served basis, shall be given to publications published more than once but less than five days per week;

c.    Third priority, on a first come first served basis, shall be given to weekly publications;

d.    Fourth priority, on a first come first served basis, shall be given to bi-weekly publications (published less than once per week but more than once per month); and

e.    Fifth priority, on first come first served basis, shall be given to monthly or less frequent publications.

The positioning order of new racks in modular newsracks shall be determined on the same priority basis as above.

4.    Temporary Newsracks. Any single unit newsrack, which meets the requirements of this chapter, may be permitted at a designated location for a period of forty-five days to determine the suitability of long-term newsrack locations. At least ten business days prior to locating a temporary newsrack, a completed permit application shall be submitted, including written notice of the particular location and date upon which the forty-five-day trial period will begin. Within ten business days after expiration of the forty-five-day trial period, the person maintaining the newsrack shall either cause it to be removed or submit a written request to the director for a permit for a permanent newsrack location. Temporary newsracks shall be skirted and weighted down.

5.    No newsrack shall be placed, installed, used or maintained:

a.    Where the newsrack will endanger persons or property.

b.    Where the newsrack will unreasonably interfere with or obstruct the flow of pedestrian, bicycle or vehicular traffic on the public right-of-way.

c.    Where the newsrack unreasonably obstructs or interferes with access to, or the use and enjoyment of, abutting property.

d.    Where the newsrack impedes or interferes with the reasonable use of any commercial window display or any external building display.

e.    Within five feet of any marked crosswalk.

f.    Within fifteen feet of any street intersection as measured from the curb return where there is an unmarked crosswalk.

g.    Within five feet of any curb ramp.

h.    At any location where the clear space for the passage of pedestrians is reduced to less than six feet except that in areas where physical obstructions provide for less than a six foot clearance, a clear space for passage of not less than four feet may be permitted for a distance of not more than ten feet with the written approval of the director.

i.    Within three feet of any fire hydrant, fire call box, police call box, other emergency facility, or traffic signal pole with a pedestrian push button.

j.    Within five feet of any driveway.

k.    Within three feet of any bench fixed parallel to curb or within four feet of any bench fixed perpendicular to curb.

l.    Within five feet of any red curb or a bus stop zone.

m.    Within five feet of any bank deposit or automatic teller facility.

n.    Within three feet of an entrance or walkway to any building or doorway.

o.    Within twelve inches of any accessible utility or meter flush mounted in sidewalk.

p.    If there are any conflicting dimensions with the placement of a newsrack as described in subsections (C)(5)(a) to (d) of this section, the greater of the dimensions shall control. (Ord. 682, § 1; 1976 Code § 5-17.06).

5.85.070 Standards.

A.    Advertisements of any kind shall not be affixed to or displayed on any newsrack or modular newsrack, except for information regarding the sale or distribution of the publication to be sold or distributed therein.

B.    No distributor shall knowingly display, sell or offer to sell harmful matter in any newsrack that is at a public place unless (1) minors are excluded from the public place, (2) the newsrack is supervised by an adult to prevent minors from gaining access to the newsrack, or (3) access to the newsrack is limited to a token or identification card that can only be obtained upon proof that the purchaser is eighteen years of age or older.

C.    No publication shall be kept or maintained in any newsrack in such a manner as to expose to the public view statements, words, pictures, illustrations, cartoons or drawings describing or showing any explicit sexual act or sexual organs. Distributors displaying, selling or offering for sale sexually explicit material shall install in all its newsracks blinders shielding from view the bottom two-thirds of the front page of the publication. (Ord. 682, § 1; 1976 Code § 5-17.07).

5.85.080 Maintenance.

A.    Each newsrack shall be maintained in a safe, neat, painted and clean condition and in working order at all times. For example, without limitation, the newsrack shall be reasonably free of dirt and grease, be reasonably free of chipped, faded, peeling or cracked paint, be reasonably free of rust and corrosion, free from graffiti, have no broken or cracked plastic or glass parts, and have no broken structural parts. Adhesive labels, or attachments, unrelated to publications in the newsracks, other than city issued identification/approval labels, shall not be displayed on newsracks.

B.    Each newsrack which requires the deposit of money to obtain the publication shall be equipped with a coin return mechanism to permit persons to secure a refund in the event they are unable to receive the paid-for publication. The coin return mechanism shall be maintained in good working order.

C.    Every distributor maintaining a newsrack under the terms of this chapter shall have his or her name, current address, and telephone number (updated within ten days of any changes) affixed to it in a place where such information will be readily visible and shall include, with such identification, instructions on how to receive a refund in the event of coin return malfunctions.

D.    Abandoned newsracks may be removed by a designated public works employee and may be disposed of if not claimed by the distributor for the newsracks within ten business days before any newsrack is removed under this subsection. The director shall give written notice to the distributor, if known, that such newsrack is suspected of being abandoned. Such newsrack shall not be removed if the distributor informs the director the newsrack has not been abandoned and promptly stocks and maintains the newsrack. Upon removal of an abandoned newsrack, the distributor shall be notified and given ten business days in which to request in writing an informal hearing before the director. Provision for such hearing shall be as set forth in MMC 5.85.090.

E.    Upon the removal of a newsrack, the distributor shall restore the public right-of-way to its original condition, including, but not limited to, completely removing the newsrack and refilling holes created for purposes of installing and maintaining newsracks. The surface upon which the newsrack was affixed shall be restored to a safe condition. (Ord. 682, § 1; 1976 Code § 5-17.08).

5.85.090 Abatement of violation.

A.    Any violation of any provision of this chapter shall be sufficient cause for cancellation of any permit, for placing a newsrack(s) at a particular location(s), issued pursuant to this chapter and removal of the newsrack(s).

B.    Upon cancellation of the permit, any newsrack that poses a danger to the health or safety of any person may be summarily removed by a designated public works department employee of the city. Notice of the removal and seizure and the opportunity to request a hearing to contest the removal and seizure shall be mailed to the person believed to be responsible for the removed/seized newsrack based on information available to the director, including the address provided on the newsrack or the address stated in the newsrack permit, within five days after the removal/seizure of the newsrack.

C.    Upon cancellation of the permit for a newsrack(s) at a particular location(s), any newsrack that does not pose a danger to the health or safety of any person may be removed by a designated public works department employee after notice has been given to the distributor that the newsrack is in violation of this chapter. Notice shall be given by posting the notice on the newsrack to be removed and mailing the notice, if feasible, to the address stated on the newsrack permit. Notice shall be deemed given upon the date of mailing or the date of posting whichever occurs first. If no adequate identification for mailing is shown on the newsrack or adequate identification for mailing cannot be determined from a newsrack permit, posting of the notice on the newsrack alone shall be sufficient. The distributor shall be given ten business days from the date of the notice to remedy the violation and/or contest removal by filing a written request for a hearing before the director. Both forms of notice shall state the place to request a hearing to contest removal of the newsrack.

D.    Any distributor notified of a violation may submit a written request for a hearing before the director, which hearing shall be held not less then ten business days after the request is made and received. The hearing shall be informal, but both sides may give oral and written evidence. Any action by the city, except for removal of a newsrack that poses a danger to the health or safety of any person, with respect to the alleged violation shall be stayed pending the director’s decision following the hearing, which decision shall be rendered no later than ten business days after the hearing. The director may give oral notice of the decision at the close of the hearing, but shall give written notice of all decisions.

E.    The newsrack(s) may be removed if the distributor has (1) neither submitted a written request for hearing before the director nor remedied the violation within ten business days following date of notice, or (2) has failed to remedy the violation within ten business days after receiving a copy of the written decision, if there is a determination at such hearing that the newsrack(s) is in violation of this chapter. The city shall notify the distributor of the removal of the newsrack(s) by mailing such notice to the distributor at the address shown on the removed newsrack or the address stated on the newsrack permit. If it is not possible to determine a mailing address, in such case notification shall not be required.

F.    Removed newsracks shall be retained by the city and may be recovered by the distributor within thirty calendar days after written notice by mail to the distributor regarding the removal of the newsrack, or removed without written notice if the city does not have adequate information for such notice. Notice shall be deemed complete on the date the notice is mailed, or the newsrack is removed if the city cannot provide notice due to a lack of information. Newsracks removed by the city shall be retained at an appropriate city location. Newsracks which are not claimed within thirty calendar days of the notice of the removal, or the date of removal when notice is not possible, shall be deemed permanently abandoned and shall be disposed of by the city in whatever fashion it deems appropriate. The disposition of any money in a newsrack to be disposed shall be determined by the city manager if such monies are not claimed by the distributor within thirty days of written notice of the removal of the newsrack.

G.    The distributor shall reimburse the city for costs and expenses incurred by the city for removing, transporting, storing, and, if required, disposing of such newsrack and restoring the public right-of-way to its original condition, whether or not the distributor claims the removed newsrack.

H.    Abatement hereunder is a cumulative remedy and does not constitute a defense to any infraction or misdemeanor citation proceedings which may be employed simultaneously pursuant to the general provisions of this code. (Ord. 682, § 1, Amended by Ord. 698, § 1; 1976 Code § 5-17.09).

5.85.100 Insurance.

Each distributor using newsracks regulated by this chapter shall furnish to the city, in a form acceptable to the city, evidence of insurance showing that such person has then in force general liability and property damage insurance, naming the city, its officers, and employees as additional insured, in an amount not less then two hundred fifty thousand dollars minimum liability combined single limit (bodily injury and property damage) per person and per occurrence. The distributor shall provide and keep in force that policy of general liability insurance during such time as it continues to locate any newsrack under the terms of this chapter. The evidence of insurance filed with the director shall include a statement by the insurance carrier that at least thirty days’ advance written notice shall be given to the director before any cancellation, reduction in insurance limits or non-renewal of the insurance. (Ord. 682, § 1; 1976 Code § 5-17.10).

5.85.110 Business license.

Each distributor using newsracks shall first obtain and maintain a city of Millbrae business license. (Ord. 682, § 1; 1976 Code § 5-17.11).

5.85.120 Indemnification.

Every distributor owning, operating, using or maintaining a newsrack upon or within public rights-of-way of the city shall enter into an agreement to release, indemnify, pay on behalf of, hold harmless, and defend the city, its officers, employees, and agents from any and all claims, suits, actions or liability for injury or damage of whatever type, nature, and description, judgments, legal costs, adjuster fees, and attorney fees directly or indirectly related to the installation, operation, use or maintenance of such newsrack(s); provided, however, that such obligation to indemnify and hold harmless shall not extend to any loss, liability, damage, or cost resulting from the negligent acts of the city or its officers, employees or agents. (Ord. 682, § 1; 1976 Code § 5-17.12).

5.85.130 Schedule for compliance.

Every newsrack within the central business district of the city which does not comply with the provisions of this chapter shall be removed or otherwise brought into conformance within three months of the effective date of the ordinance codified in this chapter. (Ord. 682, § 1; 1976 Code § 5-17.13).

5.85.140 Appeal – Notice.

The applicant, distributor or any other person with a proper interest may file an appeal to the city manager from any decision, determination or requirement of the director by filing a notice thereof in writing with the city clerk within ten calendar days after such decision, determination or requirement is made. The notice shall set forth in detail the action and the grounds upon which the appellant deems himself/herself aggrieved. The notice shall also specify the section(s) of this chapter which has been allegedly violated by the director’s action. (Ord. 682, § 1, Amended by Ord. 698, § 1; 1976 Code § 5-17.14).

5.85.150 Report concerning the appeal.

The city clerk shall report the filing of such notice of appeal to the director. A written report shall be submitted to the city manager by the director concerning the decision, determination or requirement imposed by him/her prior to the hearing on the application. (Ord. 682, § 1, Amended by Ord. 698, § 1; 1976 Code § 5-17.15).

5.85.160 Action of the appeal.

If an appeal is made within the time prescribed, a hearing will be set before the city manager within thirty days from the date of such notice of appeal. Notice of the hearing will be sent to the appellant at least ten days prior to the hearing. Upon hearing the appeal, the city manager may sustain, overrule or modify the decision, determination or requirement that was the subject of appeal and enter any such order as is in harmony with the spirit and purpose of this chapter. The city manager shall issue his/her decision within fifteen days of the hearing. The expedited procedure for judicial review of the city manager’s decision as established in California Code of Civil Procedure Section 1094.8 shall apply and the city shall make an administrative record available within five court days following receipt of written notice from a permit applicant of intent to seek judicial review of the city manager decision. (Ord. 682, § 1, Amended by Ord. 698, § 1; 1976 Code § 5-17.16).

5.85.170 Violation and penalties.

Any willful violation of this chapter may be charged and prosecuted as a misdemeanor or as an infraction as provided in Chapter 1.05 MMC, “Penalty Provisions.” (Ord. 682, § 1; 1976 Code § 5-17.17).

5.85.180 Severability.

The city council hereby declares that it would have passed this chapter sentence by sentence, paragraph by paragraph, and section by section, and does hereby declare that any provision in this chapter is severable and, if for any reason any sentence, paragraph or section of this chapter shall be held invalid, such decision shall not effect the validity of the remaining parts of the ordinance codified in this chapter. (Ord. 682, § 1; 1976 Code § 5-17.18).